Congress and the ACLU Begin Pushback on the Legality of Targeted Killings

by Julian Ku

Our own Ken Anderson joined a number of other law profs, including Prof. David Glazier, in testimony today before the National Security and Foreign Affairs subcommittee of the U.S. House Committee on Oversight and Government Reform to discuss, what else, the legality of U.S. targeted killings policy. Wired has a nice report summarizing the testimony, and the issues are already familiar to the folks on this blog. Meanwhile, the ACLU weighs in today with a tough public letter challenging President Obama’s targeted killings policy on legal grounds. The ACLU’s analysis appears to concede that targeted killings may be used (subject to law of war limits) within recognized conflict zones. But outside of those zones,

…the use of lethal force by the United States is strictly limited by international law and, at least in some circumstances, the Constitution. These laws permit lethal force to be used only as a last resort, and only to prevent imminent attacks that are likely to cause death or serious physical injury. According to news reports, the program you have authorized is based on “kill lists” to which names are added, sometimes for months at a time, after a secret internal process. Such a program of long-premeditated and bureaucratized killing is plainly not limited to targeting genuinely imminent threats. Any such program is far more sweeping than the law allows and raises grave constitutional and human rights concerns.

The letter goes on to draw a distinction between detention of enemy combatants and targeted killing of them that I don’t find all that persuasive. But taken together, the Congressional interest in these issues and the ACLU letter makes a cogent legal and policy case against targeted killings outside of Afghanistan and Iraq. The letter may be the first sign that President Obama (and Clinton and Koh) will no longer be getting a pass on their war on terrorism policies.

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